1. Defenses to Criminal Liability Part 1

2. Justification Defenses “Sure I did it, but it was the right thing to do!” D’s admit responsibility but claim justification Differs from excuse defenses – “What I did was wrong, but I shouldn’t be held responsible.” Expanded dramatically by “castle doctrine” laws

3. The Castle Doctrine Legislative extension of self-defense at home & elsewhere Two significant changes: 1) In your home, you can presume that an intruder poses the threat of death or serious harm – no need to prove reasonable fear. 2) There is no need to retreat from attack, even in public places. 40 states have passed or considered.

4. Procedural & Pragmatic Aspects Affirmative Defenses - defendant is required to present some evidence to put defense in issue. Even if the defense doesn’t wipe out criminal liability – they could: 1) lead to conviction on lesser charges 2) lead to lighter sentence as a mitigating circumstance

5. Self-Defense The rule of law prohibits the use of force for any reason Force is reserved to the government But in some, limited, circumstances force is justified: 1) need is great – necessity 2) the need is immediate 3) only for prevention

6. Self-Defense limits Can’t make a preemptive strike – forbidden from throwing the first punch, even if you know that a fight is inevitable Can’t retaliate – no “pay-backs” Law enforcement will punish Preemptive strikes come too early, retaliation too late

7. Requirements for Self-Defense To successfully assert self-defense, accused must prove: 1) They didn’t start or provoke the incident 2) They had to repel an immediate threat. 3) They responded with only as much force as was necessary – proportionality. 4) They reasonably believed that force was necessary.

8. Can’t provoke Accused cannot have initiated the encounter. Can’t pick a fight and then later claim self- defense. One exception – withdrawal. If you completely exit the scene, you can claim self-defense from a subsequent attack.

9. Necessity Requires immediacy. Inevitability isn’t enough. “Later “ doesn’t equal imminent. US v Haynes Did Haynes have any choice? Can also work to protect someone else and not just from threat of death.

10. Necessity & Reasonableness Your belief that danger is imminent, that force was necessary, and that you needed deadly force must be objectively reasonable. Subjective (personal) reasonableness is not enough. People v Goetz One of the 80’s most famous cases.

11. Retreat Under the English Common Law, you needed to prove that you had “retreated to the wall” before successfully claiming self-defense. However, in America, it was different. Stand-your-ground rule – if you didn’t start the fight, you didn’t have to run from it. If you were where you had a right to be. The minority rule – retreat is necessary.

12. Domestic Violence & Self-Defense. It took a while, but in the US, battered women received an extension of stand-your-ground. Battered woman’s syndrome – a mental disorder recognizing the long term effects of serious domestic violence on victims. Relaxes both the imminence and reasonableness criteria.

13. Defense of Others Self-defense was always available if your family was at risk. Later it was extended to lovers and friends, today to anyone who needs immediate help. But it does not extend to justify an attack on an abortion clinic.

14. Defense of Home and Property Ancient English Common Law allowed anyone to defend their home with force. But it does not justify deadly force during daytime (except for cases of robbery), if the break-in is non-violent, or in defense of the areas surrounding your home – the curtilage. Can also use appropriate (non-deadly) force to protect your things, or to get them back – provided there is no time to call the police.

15. A New trend – Castle Laws Starting in Florida in 2005, 40 states have passed laws eliminating any duty to retreat. Extreme controversy. Common sense reform? Or, are we giving private citizens more power than even the police? Giving “road rage” participants a “right to kill”?

16. Why the rush? No empirical evidence such laws are necessary. Created to protect us during a natural disaster (hurricane) when the police were too busy? Response to under-staffed police departments? But even when the bad guy is running/walking away? After stealing a case of beer?

17. Choice of Evils Also known as, the general defense of necessity You only committed the criminal act to avoid a worse outcome. Hard line to draw. It has worked when someone burns down a house to prevent a fire from torching an entire neighborhood.

18. But can you kill someone? Queen v Dudley & Stevens If four people are starving to death, can the married guys kill the bachelor? Court ruled that necessity did not justify the murder – no absolute duty to preserve one’s life. How do you decide whose life is more important? Hard case makes bad law.

19. MPC position Establishes three step analysis: 1) Identify the evils. 2) Rank the evils. 3) Decide which is more imminent. Stresses avoiding the harm of a greater crime. Life, safety, and health trump property. Rarely used w/ success. An objective determination reserved for legislature, judge or jury.

20. Examples Getting a woman in labor to the hospital excuses speeding. Rather than freeze to death, you can break into a remote cabin. Dispensing drugs without a rx in an emergency. Can someone with a revoked license drive a car off RR tracks?

21. Consent A competent adult voluntarily and knowingly agrees to the commission of crimes against themselves. Give adults the freedom to make their own choices. But these principles aren’t favored by law. Freedom to choose right or wrong means little in negligence or strict liability crimes.

22. Limitations on Consent Defenses Consent only works in four narrow situations: 1) The harm consented to is minor. 2) Harm occurs during a sporting event. 3) Injury benefits the consenter – surgery. 4) It involves sexual conduct. Plus you must prove that the consent was knowing, voluntary, and authorized.